Shafiq Khan vs State Of M.P

Heard on I.A. No.7471/2020, an application for interim relief.

This applicant has filed a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of entire criminal proceeding arising

out of Crime No.1312/2019 registered at Police Station Civil Lines, Rewa, District Rewa.

The facts of the petition, in short, are that Police received information that two persons are standing in the Kabadi Mohallai having narcotic drug

syrup for selling to someone. Police entered the information and after completing all the formalities, rushed to the spot. Applicant-Shafiq Khan and

other co-accused were sitting on the Scooty bearing registration No.M.P.17 S 6592. Applicant-Shafiq Khan disclosed his name. Police after

competing all the formalities, searched scooty and found 76 bottle of Onerex cough syrup, each bottle was having 100 ml syruph containing 10 mg

codeine phosphate in 5 ml. The applicant was not having any license or any authority or any valid document for possessing that huge quantity of

manufactured narcotic drugs. Police got two bottles as sample and after completing the seizure process, came back to the Police Station and

registered FIR against the applicant along with other co-accused. After investigation prepared final report under Section 173 of Cr.P.C. for the

offence under Section 8 read with Sections 21 and 22 of the NDPS Act as also under Section 5 read with Section 13 of M.P. Drugs Control Act,

1949 and submitted charge sheet in the Special Court. Registration no. of criminal case is not mentioned by the applicant in the petition.

The applicant filed this petition for invoking inherent powers for quashing the final report prepared under Section 173 of Cr.P.C against the applicant

on the ground that no offence of any provision of NDPS Act is made out against the applicant. Learned counsel for the applicant draws attention of

this Court towards the Gazette Notification dated 30th August, 2013 and letter issued by Drug Controller General of India time to time and vehemently

argued that whatever drugs seized from the possession of the applicant, it come under the manufactured drugs. No provision of NDPS Act would be

attracted if the drug is manufactured drug. Each Onerex bottle is having permitted limit of codeine narcotic drug, not forms any ingredients of any

offence under NDPS Act. Police has wrongly submitted charge sheet against the applicant for the offence punishable under Section 8 read with

Sections 21 and 22 of NDPS Act. Learned counsel also draws attention of this Court towards some orders passed by this Court i.e. order dated

16/5/2015 passed Cr.Rev. No.200/2015 (Shiv Kumar Gupta Vs. State of M.P.), order dated 15th October, 2015 passed in Criminal Revision

No.1621/2015 (Rohit Chadha Vs. State of M.P.), order dated 28/4/2016 passed in M.Cr.C. No.19922/2015 (Arvind Chandwani Vs. State of M.P.),

order dated 1/9/2017 passed in M.Cr.C. No.837/27. In all above mentioned orders, this Court opined that if any manufactured drugs seized from the

possession of any person, if the person is not having valid documents for keeping that drug in his possession, he commits the offence under the

provisions of M.P. Drugs Control Act but does not commit any offence under the any provisions of NDPS Act .It has been prayed to set aside the

charge sheet to the extent of offence of NDPS Act. In these premises, prayer is made to stay the entire criminal proceeding.

On the other hand, learned Panel Lawyer vehemently opposes this application and submits that Hon'ble Apex Court clearly held that if any person

is having illegal possession of any manufactured drugs contained narcotic drugs, he can be prosecuted under the provisions of M.P. Drugs Control Act

as well as under the provisions of NDPS Act, therefore, prays for dismissal of the application.

Having heard learned counsel for the parties, perused the orders referred by the applicant.

This Court has not impressed with the arguments advanced by learned counsel for the applicant. It seems that counsel did not go through the

judgments of Hon'ble Apex Court. Hon'ble Apex Court in the case of State of Punjab Vs. Rakesh Kumar, AIR 2019 SC 8 4recently reversed the

conclusion given by various High Courts that if any person apprehended with manufactured drugs, he can be convicted only under Drugs and

Cosmetic Act but not under any provision of NDPS Act. Para-4 of the said judgment reproduces as under :-

“4. Aggrieved by the Judgment and conviction by the respective Trial Courts, the accused - respondents approached the High Court through various appeals.

The accused-respondents, during the pendency of the appeals, preferred an application seeking suspension of sentence. Since a common question of law was

involved in the above appeals, the High Court heard the matters together and passed a common order dated 29.01.2018, allowing the applications for suspension of

sentence preferred by the accused respondents. The High Court observed that manufactured drugs, be it containing narcotic drugs or psychotropic substances, if

manufactured by a manufacturer, must be tried,if violation is there, under the Drugs and Cosmetics Act and not under the NDPS Act, except those in loose form by

way of powder, liquid etc. Dissatisfied by the above order dated 29.01.2018, the State has preferred the present appeals.â€​

Hon'ble Apex Court settled the dispute as mentioned in para-4 of its judgment and after referring various provisions of NDPS Act and also after

referring its own decision passed in the case of Union of India Vs. Sanjeev V. Deshpandey, AIR 2014 SC 3625 in paras 14 to 16 held as under :

“14. However, we are unable to agree on the conclusion reached by the High Court for reasons stated further. First, we note that Section 80 of the N.D.P.S Act,

clearly lays down that application of the Drugs and Cosmetics Act is not barred, and provisions of N.D.P.S. Act can be applicable in addition to that of the provisions

of the Drugs and Cosmetics Act. The statute further clarifies that the provisions of the N.D.P.S Act are not in derogation of the Drugs and Cosmetics Act, 1940. This

Court in the case of Union of India vs. Sanjeev V Deshpande (supra), has held that,

“35.…essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs

and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law on the subject. Further the provisions of the Act

operate in addition toprovisions of 1940 Act.â€​

(emphasis supplied)

The aforesaid decision further clarifies that, the N.D.P.S Act, should not be read in exclusion to Drugs and Cosmetics Act, 1940. Additionally, it is the prerogative

of the State to prosecute the offender in accordance with law. In the present case, since the action of the accused Respondents amounted to a prima facie violation of

Section 8 of the N.D.P.S Act, they were charged under Section 22 of the N.D.P.S Act.

In light of above observations, we find that decision rendered by the High Court holding that the accused respondents must be tried under the Drugs and

Cosmetics Act, 1940 instead of the N.D.P.S Act, as they were found in possession of the “manufactured drugsâ€, does not hold good in law. Further, in the

present case, the accused respondents had approached the High Court seeking suspension of sentence. However, in granting the aforesaid relief, the High Court

erroneously made observations on the merits of the case while the appeals were still pending before it.â€​

After considering the arguments advanced by learned counsel for the parties and on going through the above cited case-laws, this Court is of the

firm view that if any person is apprehended with a manufactured drug not having any authority, license or valid documents for keeping that

manufactured drug in his possession and drug is having any narcotic drug or psychotropic substance as alleged in this petition codeine, the person can

be charged for the offence under the provisions of NDPS Act (whichever is applicable), in addition to the provisions of other Acts. In the present case

it is not disputed that the applicant apprehended with Onerex syrup having codeine phosphate as a containt in the syrup which is narcotic drug and

psychotropic substance and while considering the whole quantity of syrup, it comes 7600 ml., that comes more than commercial quantity. In view of

this, this Court is not inclined to stay the criminal proceeding of any Court arising out of Crime No.1312/2019 registered at Police Station, Civil Lines,

Rewa, Distt. Rewa.

Further more, the case is being tried by the Special Court constituted for disposal of the cases relating to the offences of NDPS Act which is a

statutory authority, Court should not stay any criminal proceeding if there is statutory authority and the case is being tried by that authority. The

applicant is having full opportunity to contest and to file any objection whatever he has, before the trial Court.

Accordingly, I.A. No.7471/2020 is hereby dismissed.

Let copy of this order be sent to the Special Court of NDPS Act, Distt. Rewa for information.